IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JEFFREY F. RUDERT,

Plaintiff,

vs. Civil Action 2:12-cv-818 

 Judge Graham

Magistrate Judge King

GARY C. MOHR, et al.,

Defendants.

OPINION AND ORDER

On October 9, 2012, the Magistrate Judge issued a Report and

Recommendation, Doc. No. 7, recommending that the Complaint be

dismissed for failure to state a claim upon which relief can be

granted. This matter is before the Court on plaintiff’s Objection to

Recommendation of Dismissal of Complaint (“Plaintiff’s Objections”),

Doc. No. 9. For the reasons that follow, Plaintiff’s Objections are

OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. 

This action is hereby DISMISSED.

Plaintiff, an inmate in the Marion Correctional Institution

(“MCI”), alleges violations of due process and the First Amendment

right access the courts, against officials of the Ohio Department of

Rehabilitation and Corrections and MCI in connection with plaintiff’s

grievances. See Complaint, ¶¶ 27, 35, 38, 53, 73. Plaintiff alleges

that his grievances have been ignored or not timely responded to, that

he has not been provided grievance forms as requested, that his

grievances have not been resolved properly, and that MCI improperly

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requires inmates to submit an original copy (the “canary yellow copy”)

of grievances to prison officials. Plaintiff seeks monetary relief

and injunctive relief mandating, inter alia, that defendant Smith be

removed as a state officer and replaced with someone educated in the

grievance process and that defendant Miley be trained in grievance

procedures. Id. at pp. 16-17. 

The Magistrate Judge recommended that the Complaint be dismissed

for failure to state a claim because “the due process clause of the

United States Constitution does not confer upon prison inmates a right

to an effective prison grievance procedure” and because plaintiff has

not been denied his First Amendment right to access the courts. 

Report and Recommendation, pp. 1-2. Plaintiff objects to the Report

and Recommendation on the basis that the Magistrate Judge

miscategorized his claims. According to plaintiff, his claims are not

based on whether MCI has an effective grievance procedure or whether

he has direct access to the courts. Plaintiff’s Objections, pp. 2-3. 

Plaintiff argues that his claims are based on defendants’ “chilling

and hindering” the availability of administrative remedies and whether

plaintiff has to exhaust administrative remedies prior to bringing a §

1983 claim. Id. at pp. 2-3.

The Prisoner Litigation Reform Act (“PLRA”) requires a prisoner

filing a claim under federal law relating to prison conditions to

first exhaust available administrative remedies. 42 U.S.C. § 1997e(a); 

Porter v. Nussle, 534 U.S. 516, 519 (2002). The statute provides that

“[n]o action shall be brought with respect to prison conditions under

section 1983 of this title, or any other Federal law, by a prisoner

confined in any jail, prison, or other correctional facility until

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such administrative remedies as are available are exhausted.” 42

U.S.C. § 1997e(a). In order to satisfy this exhaustion requirement,

an inmate plaintiff must “complete the administrative review process

in accordance with the applicable procedural rules.” Woodford v. Ngo,

548 U.S. 81, 88 (2006). “[F]ailure to exhaust is an affirmative

defense under the PLRA, and [ ] inmates are not required to

specifically plead or demonstrate exhaustion in their complaints.” 

Jones v. Bock, 549 U.S. 199, 216 (2007). Exhaustion is not a

jurisdictional predicate but the requirement is nevertheless

mandatory, Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999), even

if proceeding through the administrative procedure would appear to the

inmate to be “futile.” Hartsfield v. Vidor, 199 F.3d 305, 308–10 (6th

Cir. 1999).

“Exhaustion” under the PLRA means “proper exhaustion.” Woodford,

548 U.S. at 93. To properly exhaust, prisoners must “tak[e] advantage

of each step the prison holds out for resolving the claim internally

and . . . follow the ‘critical procedural rules' of the prison's

grievance process to permit prison officials to review and, if

necessary, correct the grievance ‘on the merits' in the first

instance.” Reed–Bey v. Pramstaller, 603 F.3d 322, 324 (6th Cir.

2010); Jones, 549 U.S. at 217–18 (noting that proper exhaustion

requires “[c]ompliance with prison grievance procedures”).

Ohio has established a procedure for resolving inmate complaints.

See Ohio Admin. Code § 5120–9–31. The procedure is available to an

inmate “regardless of any disciplinary status, or other administrative

or legislative decision to which the inmate may be subject,” and it is

intended to “address inmate complaints related to any aspect of

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institutional life that directly and personally affects the grievant,”

including “complaints regarding policies, procedures, [and] conditions

of confinement.” Id. § 5120–9–31(A), (D). Certain matters are not

grievable, however, including “complaints unrelated to institutional

life, such as legislative actions, policies and decisions of the adult

parole authority, judicial proceedings and sentencing or complaints

whose subject matter is exclusively within the jurisdiction of the

courts or other agencies.” Id. § 5120–9–31(B).

Ohio employs a three-step grievance procedure. First, an inmate

must file an informal complaint within fourteen days of the event

giving rise to the complaint. Id. § 5120–9–31(K)(1). The informal

complaint must be filed “to the direct supervisor of the staff member,

or department most directly responsible for the particular subject

matter of the complaint.” Id. If the informal complaint is resolved

in a manner that is unsatisfactory to the inmate, he must file a

notification of grievance with the inspector of institutional services

within fourteen days. Id. § 5120–9–31(K)(2). If the inmate is

dissatisfied with the disposition of the grievance, he must then

appeal to the office of the chief inspector within fourteen days. Id.

§ 5120–9–31(K)(3). An inmate does not exhaust his remedies under §

5120–9–31 until he has received a decision in an appeal to the office

of the Chief Inspector. If an inmate has a grievance against the

warden or inspector of institutional services, he must file it

directly to the office of the Chief Inspector, whose decision is

final. Id. § 5120–9–31(M).

Plaintiff appears to argue that defendants are preventing him

from satisfying the exhaustion requirement of the PLRA by barring his

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grievances at step two of Ohio’s grievance procedure. Plaintiff’s

Objections, p. 2. Plaintiff essentially argues that defendants’

improper responses and resolution of his grievances, see Complaint, ¶¶

1-3, 11, 18, 21, 29, 48, 57-58, 75, defendants’ failure to provide

grievance forms as requested, see id. at ¶¶ 6, 10, 30, 51, and MCI’s

requirement that inmates submit an original copy of grievances to

prison officials, see id. at ¶¶ 19-27, 30-34, 41-43, 52, 69-72,

renders the grievance process unavailable. See id. at ¶¶ 27, 35, 38,

53, 73. According to plaintiff, the unavailability of the grievance

process is a violation of due process and his First Amendment right to

access the courts. Id.; Plaintiff’s Objections, pp. 2-3.

In order to state a viable claim for interference with access to

the courts, a plaintiff must show actual prejudice to pending or

contemplated litigation. Dellis v. Corr. Corp. of Am., 257 F.3d 508,

511 (6th Cir. 2001) (citing Lewis v. Casey, 518 U.S. 343, 351 (1996)). 

“Like any other element of an access claim, the underlying cause of

action and its lost remedy must be addressed by allegations in the

complaint sufficient to give fair notice to a defendant.” Christopher

v. Harbury, 536 U.S. 403, 416 (2002) (citing Swierkiewicz v. Sorema

N.A., 534 U.S. 506, 513-515 (2002)). Plaintiff alleges that defendant

interfered with his right of access to the courts by preventing him

from exhausting his administrative remedies. Plaintiff does not,

however, allege that he was injured by defendants’ conduct; plaintiff

has not been prevented from filing suit and he does not allege any

interference with pending litigation. Further, the exhaustion

requirement mandates only exhaustion of available administrative

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remedies. See 42 U.S.C. § 1997e(a) (emphasis added). “If plaintiff

was improperly denied access to the grievance process, the process

would be rendered unavailable, and exhaustion would not be a

prerequisite for initiation of a civil rights action.” See e.g.,

Watson v. Karppinen, No. 2:12-cv-260, 2012 U.S. Dist. LEXIS 102208, at

*3 (W.D. Mich. July 24, 2012). Under the circumstances, plaintiff’s

appropriate recourse is to persuade a court that he has exhausted

available administrative remedies and that he has plead a nonfrivolous claim that entitles him to relief; not that he is entitled

to an injunction mandating a certain state procedure. Plaintiff has

therefore failed to state a First Amendment access to the courts

claim. 

Moreover, as the Magistrate Judge noted, plaintiff does not have

a due process right to file a prison grievance. It is well

established that there is no constitutional or state created right to

any particular grievance procedure. Threatt v. Birkett, No. 07-1752,

2008 U.S. App. LEXIS 28074, at *2 (6th Cir. Feb. 15, 2008) (quoting

Walker v. Mich. Dep’t of Corr., 128 F. App’x 441, 445 (6th Cir.

2005)). 

In short, the Complaint fails to state a claim upon which relief

can be granted.

Pursuant to 28 U.S.C. § 636(b)(1), this Court has conducted a

careful de novo review of the Report and Recommendation and

Plaintiff’s Objections. For the foregoing reasons and for the reasons

detailed in the Magistrate Judge's Report and Recommendation,

Plaintiff’s Objections, Doc. No. 9, are OVERRULED. The Report and

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Recommendation, Doc. No. 7, is ADOPTED and AFFIRMED. This action is

hereby DISMISSED for failure to state a claim upon which relief can be

granted. 

The Clerk is DIRECTED to enter FINAL JUDGMENT.

Date: November 2, 2012 s/James L. Graham 

 James L. Graham

 United States District Judge

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